Trethowans & Oxford University Hospitals NHS, Claiming for costs |
Trethowans & Oxford University Hospitals NHS, Claiming for costs |
Sat, 13 Apr 2019 - 20:43
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#1
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Member Group: Members Posts: 3,306 Joined: 4 Mar 2017 Member No.: 90,659 |
Hi all,
As predicted I got the usual copy and paste court summons from the angelic Olivia Muscat at Trethowans. Would appreciate any feedback on my defence. Unfortunately because of technical ineptitude I don't have access to the Word document here but thanks for downloading the PDF or looking at the images PDF defence link |
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Sat, 13 Apr 2019 - 20:43
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Mon, 15 Apr 2019 - 12:00
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#21
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Member Group: Members Posts: 542 Joined: 26 Sep 2012 Member No.: 57,365 |
What happened with the proserve / duff case?
Wasn't it ruled that if operating a parking scheme, those administering it must be a full member of an accredited trade Association before being allowed to use DVLA data? Shouldn't the same apply here? |
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Mon, 15 Apr 2019 - 12:09
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#22
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
My understanding is that a company doesn't have to be a member of a trade association to make a paper application
I wouldn't be surprised if Proserve most of the time didn't bother contacting the DVLA but simply used the details on the side of the truck |
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Mon, 15 Apr 2019 - 13:13
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#23
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Member Group: Members Posts: 9,985 Joined: 20 Aug 2008 Member No.: 21,992 |
My understanding is that a company doesn't have to be a member of a trade association to make a paper application Duff, after being told he DID have to be a member of an ATA to access DVLA data (by any method, they too were using manual V888 at the time), paid for a Judicial Review, which he lost. http://www.bailii.org/ew/cases/EWHC/Admin/2015/1605.html QUOTE Conclusion I agree with the Deputy High Court Judge who refused permission on the papers, prior to its grant at an oral hearing. She observed that this claim for judicial review is really a merits challenge to the decision rather than a true public law claim. The claimant does not agree that he should be subject to a requirement that he should join an ATA if he wishes to be able to access large amounts of data from the register in order that he can profit by recovering sums of money from the keepers or drivers of vehicles which have trespassed on his clients' land. He is no doubt entitled to that view. However, the Secretary of State took a different view and his decision is plainly not irrational and there is no other arguable basis for quashing it. Has this since been overturned? -------------------- Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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Tue, 16 Apr 2019 - 18:56
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#24
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Member Group: Members Posts: 3,306 Joined: 4 Mar 2017 Member No.: 90,659 |
Well I have put in a query/complaint to the DVLA asking whether they should consider banning OUH from DVLA look ups as they're essentially doing a Proserve, e.g. only applying for the details to pass them to Trethowans and allow Trethowans to avoid joining a ATA.
Obviously won't affect this case but if it gives them a poke in the eye and forces them to offer some form of ADR - hopefully POPLA - thenall the better. |
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Wed, 17 Apr 2019 - 07:29
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#25
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Member Group: Members Posts: 33,610 Joined: 2 Apr 2008 From: Not in the UK Member No.: 18,483 |
Duff, after being told he DID have to be a member of an ATA to access DVLA data (by any method, they too were using manual V888 at the time), paid for a Judicial Review, which he lost. He was refused permission to make his judicial review, it was never argued on the merits. -------------------- Moderator
Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed. |
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Wed, 17 Apr 2019 - 11:26
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#26
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Member Group: Members Posts: 10,695 Joined: 23 Apr 2004 From: Not in the UK Member No.: 1,131 |
Not being a member of an ATA is no bar to getting RK info from what I can see.
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Wed, 17 Apr 2019 - 13:11
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#27
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Member Group: Members Posts: 9,985 Joined: 20 Aug 2008 Member No.: 21,992 |
Duff, after being told he DID have to be a member of an ATA to access DVLA data (by any method, they too were using manual V888 at the time), paid for a Judicial Review, which he lost. He was refused permission to make his judicial review, it was never argued on the merits. Ah, OK, I stand corrected. Same outcome about him being required to be in an ATA though. And there are still references in there to the Secretary of State's 'policy' that requires car park management companies to be ATA members in order to access the DVLA register. This post has been edited by ManxRed: Wed, 17 Apr 2019 - 13:12 -------------------- Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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Wed, 17 Apr 2019 - 14:57
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#28
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Member Group: Members Posts: 3,306 Joined: 4 Mar 2017 Member No.: 90,659 |
Got a reply from the DVLA impressively quickly. They seem to be under the misapprehension that OUH offer an appeals service.
QUOTE Good Afternoon Thank you for your email 15.04.2019 about the release of information to Oxford NHS Trust. I wish to explain that the DVLA takes the protection and security of its very seriously and has procedures in place to ensure information is disclosed only where it is lawful and fair to do so. While I understand your concerns about the protection of your personal details, NHS Trusts are not currently required to be members of an Accredited Trade Association (ATA). The Department of Health is responsible for issues concerning the control of parking on NHS Trust land and have issued guidance to help ensure patients and their families are not treated unfairly. The NHS guidelines can be found online at www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles Where NHS trusts have contracts in place with private car parking management companies, those companies are required to be members of an ATA. However, some NHS Trusts manage their own parking and use solicitors to deal with the administration. Those wishing to dispute a parking change notice should contact the NHS Trust appeals service. I trust I have explained the agency position on this. Kind Regards and my reply. QUOTE Dear Greg,
Thank you for your quick reply. I appreciate you may have already considered it but in this situation is it not clear that the case almost directly parallels the Duff - Proserve vs Secretary of State for Transport, heard by the High Court? All correspondence comes from Trethowans and the Trust refuses to enter into any correspondence directly. The Trust is effectively a sock puppet used only to obtain RK details and send them directly to Trethowans. The Trust does not, for example, send the initial letter or offer to hear appeals if drivers cannot agree with Trethowans. As in the Proserve case the only purpose for the current setup is to negate the need for Trethowans to join an ATA. You are correct that there is no legal requirement for Trusts to register with an ATA or use a contractor who is an ATA member. However, the Department of Health Memorandum 07-03 2015 states " 7.1 The creation and delivery of best practice car-parking strategies depends on a number of factors and a range of individuals and organisations combining to meet the aims of these strategies. Generally speaking, car-parks that demonstrate best practice, whether in the NHS or in other organisations, are those where the lead organisation managing the car-park has formed partnerships with other companies that work in the parking industry such as trade bodies and operators. 7.2 All of the best practice NHS organisations identified in this guidance have demonstrated that a close working relationship with the trade associations (British Parking Association and the Independent Parking Committee) can be extremely beneficial to both parties. It allows NHS organisations to maintain connections that the trade associations can offer as well as guidance and peace of mind to the users that the car-park has been recognised. NHS organisations that have formed partnerships with the trade associations should offer a better car-parking experience for patients, visitors and staff." https://assets.publishing.service.gov.uk/go...mberUpdated.pdf As stated in 7.2, all the case studies of best practice hospital Trusts have "Use one of the two trade associations" as one of their management principles. Thirty one NHS Trusts are members of the BPA, and many more use contractors that are registered members. The setup used by OUH and Trethowans is highly unusual. As in the Duff vs Secretary of State for Transport, it is made clear that the DVLA has discretion when releasing details. One of the reasons for the DVLA requirement for ATA membership is to reduce the number of cases brought to court, as ATA members must provide independent appeals service. The cost of this is bourne by the service operator rather than state. "The existence of an independent and free appeal body is a matter which the Secretary of State is entitled, in my judgment, to regard as a real benefit to the public interest conferred by the policy.... i) The legislation creates a discretion: disclosure may be made to a person whom the Secretary of State considers has a reasonable cause for wanting it. He is entitled to have a policy which governs the exercise of that discretion. ii) In any event, a person who wanted disclosure to enforce a genuine liability by improper means would have a cause for wanting it, but not a reasonable cause. The function of the policy is to prevent malpractice and thus to ensure that disclosure is made to those whose cause is reasonable in this sense." https://www.bailii.org/cgi-bin/markup.cgi?d.../2015/1605.html A lack of requirement to obey any code of practice is also a real issue. Proserve were found to be using poor signage to disadvantage motorists. When I got a parking ticket OUH/Trethowans sought to rely on one - small - sign at the hospital entrance. There wasn't, and still aren't, any signage where the driver parked, or any red or yellow lines indicating parking was prohibited. I have attached photos. Photos 1 shows the sign Trethowans claimed was sufficient. Photo 2 shows the path to the parking location with no further signs. The vehicle was parked against the wooden fence in photos 3. As you can see there are no signs visible about parking in any direction. Quite simply it falls far, far, far below the standards that would be expected of an ATA member. As such, neither Trethowans or OUH should be given the benefit of the doubt as to whether they are acting properly. OUH do not offer any appeals service - as a "Trust appeals service". They refuse to enter into any correspondence. The appeals service is operated by Trethowans. Motorists can only appeal to one person at Trethowans. You can't request your appeal is reviewed by the Trust, by a second person within Trethowans, or via any other form of alternative dispute resolution. The only other dispute resolution offered by Trethowans is to issue a court claim. Trethowans aren't offering merely offering legal advice. They providing the staff and paraphrase any instructions from the Trust. All communications is sent from and exclusively received to Trethowans. Any payments are sent to Trethowans. They are acting as a de facto parking management company. In fact, until recently they used to confirm they "specialise[d] in the niche area of car park enforcement" on the "Parking Enforcement" page on their website. If Trethowans were offering genuine consideration of appeals then I not providing a ATA independent appeals would be less of an issue. If they had a site that had clear signs and lines on the road, code of practice compliance would be less of an issue. However, the exact benefits to motorists that were being compromised in the Proserve case are being lost by the current conduct of OUH and Trethowans. There is no good reason why either party couldn't or shouldn't be an ATA member. To protect the benefits valued by the SoS in 2015 the DVLA could refuse to provide details in line with the ATA membership policy, and insist on OUH & Trethowans following the rules that apply to all other parking management companies. As with Proserve, I think the DVLA is entitled to act whether or not a company is just about scraping along the bare legal minimum requirements. There would seem to be a keen public interest in acting here rather than this setup being the accepted minimum standard on NHS sites. Sorry to push the point. I am just acutely aware that many people getting tickets on a hospital site are going to be elderly or vulnerable. Relaxing the protections they have versus those they now expect under PoFA across 99.9% of private car parks because of the standards insisted on by the DVLA seems an opportunity missed. Thank you again for your assistance. Kind regards, This post has been edited by notmeatloaf: Wed, 17 Apr 2019 - 14:59 |
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Wed, 17 Apr 2019 - 19:32
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#29
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Member Group: Members Posts: 3,124 Joined: 8 Feb 2013 Member No.: 59,842 |
I suspect a rather junior civil servant won’t risk putting his head above the parapet by taking on a firm of solicitors. They would rather take on a much more (seemingly) weak individual who would (perhaps in their underestimation here) be less of a problem for them. We see it very often in DVLA fob-off responses.
How about involving your MP now, they won’t so easily try to fob him/her off? Well done on your tenacity. |
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Wed, 17 Apr 2019 - 21:45
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#30
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Member Group: Members Posts: 3,306 Joined: 4 Mar 2017 Member No.: 90,659 |
My MP is Ed Vaizey. So... not an option.
I'm not sure it is hopeless with the DVLA. The OUH/Trethowans situation is so similar to Duff/Proserve that I think it is difficult to dismiss it out of hand. And, in the end, the SoS is ultimately heading up the DVLA, and if it did go the MP route, there would have to be an explanation as to why the clear instruction that an independent appeals arbiter should be offered was ignored. From his response it is also clear that his impression was that the Trust handled the initial correspondence and appeal, before the file was handed over to Trethowans, which would be a preferable arrangement even if not compliant with ATA membership. You are quite right that one person complaining vs an outwardly respectable firm of solicitors is a big ask. But likewise, the DVLA wouldn't be refusing to provide RK details. It would, like Proserve, refuse to provide them if they hadn't complied with the instruction to join an ATA by a certain date. |
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Fri, 19 Apr 2019 - 09:05
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#31
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Member Group: Members Posts: 3,768 Joined: 17 Mar 2013 Member No.: 60,602 |
The argument that will be made here by the DVLA is that Trethowans are acting as the Trust's legal representative so can act in all ways as though they were the client. You could then ask why they use Trethowans when the Trust have an in house legal department. Do they use Trethowans for anything other than parking? We know that Trethowans pursue parking charges for Aintree University Hospital NHS Foundation Trust so the same questions could be asked of that Trust. Do Trethowans act on parking matters for any other NHS Trust? All the answers can be obtained by FoI requests.
The suggestion that Trethowans is acting as a PPC without belonging to an ATA would be more persuasive if evidence of a similar modus operandi with other NHS Trusts were produced. Perhaps FoI details of payments made to Trethowans? Are Trethowans offering a cut price parking service or are they charging regular legal fees for parking matters. If the latter is the case it sounds like a sledgehammer to crack a nut & incredibly poor value for the Trusts involved. -------------------- British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012 |
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Fri, 19 Apr 2019 - 16:58
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#32
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Member Group: Members Posts: 3,306 Joined: 4 Mar 2017 Member No.: 90,659 |
The issue with that is that you would surely expect the Trust to send the initial letter for a debt of £25, and then hand it to a solicitor if it is snt paid. Apart from anything else the Trust claims that it receives all the money from BCNs, and then pays Trethowans undisclosed amounts for their services.
It can't be correct that they are offering any sort of legal representation charging less than £25 a letter. Essentially the first letter at least is effectively just selling the letterhead. If the SoS is saying there is a public interest in having ATA membership and independent appeals, then it is counter intuitive to allow someone to sell a PPC business model as legal advice. You are correct that by bolting it onto a solicitor business they may well get away with it. However, as here, they aren't exactly covering themselves in glory with their appeals process. It must be a tiny minority of PPCs who would pursue a site with only one sign, on the offside of the entrance. Really working for the NHS there should at least be a moral duty to have a reasonably signed site and fair consideration of appeals. If one company is allowed to bypass ATA requirements then what is to stop any wannabe PPC bolt themselves onto a decoy consultancy business and claim they are simply advising a client? Slippery slope. |
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Fri, 19 Apr 2019 - 17:22
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#33
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Member Group: Members Posts: 3,768 Joined: 17 Mar 2013 Member No.: 60,602 |
A combination of a SAR to both the Trust & Trethowans plus a series of FOI requests should be able to tease out exactly how the scheme is operated.
On the face of it either Trethowans are losing money chasing a few piddling parking charges or the Trust is losing money by paying a law firm to chase piddling parking charges. -------------------- British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012 |
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Fri, 19 Apr 2019 - 18:51
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#34
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Member Group: Members Posts: 3,124 Joined: 8 Feb 2013 Member No.: 59,842 |
A combination of a SAR to both the Trust & Trethowans plus a series of FOI requests should be able to tease out exactly how the scheme is operated. On the face of it either Trethowans are losing money chasing a few piddling parking charges or the Trust is losing money by paying a law firm to chase piddling parking charges. Here’s a relatively recent FOI response re Aintree UHT and Trethowans. A massive waste of NHS resource chasing parking charges. Trethowans gaining ~ £2 for every £1 they give back to the Trust! ETA - didn’t put in link, sorry! Here you go. https://www.whatdotheyknow.com/request/tret...incoming-782433 This post has been edited by Umkomaas: Fri, 19 Apr 2019 - 19:29 |
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Fri, 19 Apr 2019 - 19:05
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#35
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Member Group: Members Posts: 3,306 Joined: 4 Mar 2017 Member No.: 90,659 |
From a FoI in 2017
QUOTE · There are 9146 cases over a 6 year period (approximate) · There are no incentives or targets for Trethowans with regards to BCN process · The Trust retains all the money from breach of contract notices which obviously isn't true because unless they are charging a fixed fee - say they split the £25 50:50 - you would have to have incredibly desperate solicitors to be doing 1,500 tickets for less than £20k a year. More likely they are charging the Trust for any work done, which of course would explain why you would have a pointless appeals process if you are charging for every copy and paste letter. The bizarre thing is the court claim is for £131.45 - £51.45 parking charge, £50 legal reps and £30 costs. So either Trethowans are the cheapest solicitors on the planet, or the Trust is losing money by bringing the case. In which case, why are the Trust being advised to pursue a case where they will lose money? Makes no sense. Also makes no sense why they are paying Trethowans to send out an initial mail merge letter when they have a letter production office doing thousands a week on site. |
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Fri, 19 Apr 2019 - 21:31
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#36
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Member Group: Members Posts: 33,610 Joined: 2 Apr 2008 From: Not in the UK Member No.: 18,483 |
The bizarre thing is the court claim is for £131.45 - £51.45 parking charge, £50 legal reps and £30 costs. So either Trethowans are the cheapest solicitors on the planet, or the Trust is losing money by bringing the case. In which case, why are the Trust being advised to pursue a case where they will lose money? Makes no sense. £50 doesn't reflect the solicitor's costs, it's simply the fixed amount that can be claimed for issuing a claim in the sum. I issue a good number of claims for fixed sums and, if they're admitted and paid on receipt, the fixed costs recovered are often less than what I bill my client. That's simply how fixed costs work. -------------------- Moderator
Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed. |
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Sun, 21 Apr 2019 - 07:49
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#37
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Member Group: Members Posts: 11,094 Joined: 24 Aug 2007 From: Home alone Member No.: 13,324 |
@notmeatloaf
Wouldn't go to court with this one. The Claimant has every right to instruct solicitors against trespassers. They'll win quite easily against technical arguments. |
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Sun, 21 Apr 2019 - 10:37
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#38
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Member Group: Members Posts: 4,337 Joined: 4 Jan 2007 Member No.: 9,897 |
@notmeatloaf Wouldn't go to court with this one. The Claimant has every right to instruct solicitors against trespassers. They'll win quite easily against technical arguments. trespass? so if you have an accident do you have to phone/write/email the hospital to get permission to enter the land and in the OPs case they had a pre booked appointment ASKING for them to attend how can you have trespass when you are invited? having read thru the thread , neither the hospital or tregs are members of an ATA ,and we know that differences between v888/1 and v888/2 and v888/3 , the latter being used exclusively for PARKING offences but yet they try pretending to be one by quoting specific rules initiated under pofa 2012 for parking Cos how can a non parking Co rely on keeper liability via section 4 of the POFa ? edit: after reading thu parts of the act , my thoughts are that in order to use the protection of this act , you must be able to offer an independent appeal , which falls back to being , you have to be in a recognized ATA to use this This post has been edited by freddy1: Sun, 21 Apr 2019 - 11:12 |
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Sun, 21 Apr 2019 - 11:31
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#39
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Member Group: Members Posts: 4,337 Joined: 4 Jan 2007 Member No.: 9,897 |
as per Guidance on Section 56 and Schedule 4
of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges https://assets.publishing.service.gov.uk/go...ing-charges.pdf . Tickets issued by non-ATA members who do not obtain registered keeper data from DVLA cannot use the keeper liability provisions in Schedule 4. the wording is unclear , but hospital/tregs did not use v888/3 , specific to parking does this not exclude tregs from using POFa? |
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Sun, 21 Apr 2019 - 13:21
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#40
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Member Group: Members Posts: 11,094 Joined: 24 Aug 2007 From: Home alone Member No.: 13,324 |
You are confusing "old school" trespass with the convoluted contract/ATA arguments the DfT brought in to stop PPC's hoovering up even more money.
Trethowans have been down this road (pun) many times with Aintree and won't have much difficulty. But it is up to the OP and their money/time. Court can be very unforgiving. |
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